TAX EVASION OFFENSE

The offense of tax evasion is regulated in Article 359 of the Tax Procedure Law in 4 groups regarding the acts and penalties that constitute the offense in relation to the books, records and documents that are organized or kept in accordance with the Tax Procedure Law and which must be kept and submitted in addition to this.

ACTS AND PENALTIES CONSTITUTING THE OFFENSE OF TAX EVASION

1) In the books and records organized or kept in accordance with the Tax Law and which must be kept and submitted in addition to this;

-Those who commit account and accounting fraud 

-Those who open accounts in the name of persons who are not real or not related to the transactions subject to registration

-Those who record the accounts and transactions required to be recorded in the books in whole or in part in other books, documents or other recording media in a way that results in a decrease in the tax basis

-Those who falsify books, records and documents

-Those who conceal books, records and documents. Concealment of books, records and documents is defined as not submitting the books and documents to the authorized persons during the tax inspection, even though their existence is established by notarization records or other means (“saying the words or doing the actions required by law in order to ensure the promise of a person or to confirm the accuracy of his promise”).

-Those who issue or use misleading books, records and documents in terms of content (based on a real transaction or situation, but reflecting this transaction or situation in a way that is contrary to the truth in terms of nature or amount) shall be sentenced to imprisonment from eighteen months to five years.

2) Books, records and documents kept or issued in accordance with tax laws and obliged to be kept and submitted

-All those in favor

-Those who destroy the book pages,

-Those who destroy the pages of a ledger and replace them with other pages,

-Those who forge the original or copies of documents in whole or in part

-Those who use original or copies of documents by forging them in whole or in part shall be sentenced to imprisonment from three to eight years.

3) According to the provisions of the Tax Law, those who print or knowingly use documents that can only be printed by persons who have an agreement with the Ministry of Finance, without having an agreement with the Ministry, shall be sentenced to imprisonment from two to eight years.

4) Removes the seal of the payment recorder device, even though it is not authorized by the Ministry of Treasury and Finance,

5) Changes its hardware or software without being authorized by the Ministry of Treasury and Finance,

Whether or not authorized by the Ministry of Treasury and Finance;

• By interfering with the memory units of the payment recorder device, electronic circuit elements or the connection system with external hardware or software or electronic control and audit systems or other related systems established to prevent unregistered sales, either physically or through informatics; preventing the recording of financial documents or information of the sales performed in the device,

• Changes or deletes information stored on the device,

• Those who prevent the transmission of documents, information or data that should be transmitted electronically to the Ministry of Treasury and Finance or other public institutions and organizations by the payment recorder device or other related hardware and systems or electronic control and audit systems established to prevent unregistered sales or other related systems, or who cause them to be transmitted inaccurately

The penalty is imprisonment from three to eight years.

The conditions for the reduction of the penalty imposed as a result of these acts constituting the offense of tax evasion and the conditions required to benefit from this reduction are also specified in Article 359 of the Tax Procedure Law. In the event that the offenses regulated in this article are committed within the scope of the execution of the same criminal decision within more than one calendar year or taxation period, a chain crime occurs and each act constituting a crime is not punished individually, instead, a single punishment is given and this punishment to be given in accordance with Article 43 of the Turkish Penal Code is increased from one fourth to three quarters.

STATUTE OF LIMITATIONS FOR TAX EVASION OFFENSE

There is a difference in the statute of limitations for the execution of the penalty and the period for filing a lawsuit in terms of tax evasion offense. While the statute of limitations for the execution of the penalty is regulated in the Tax Procedure Law, the general statute of limitations regulated by the Turkish Criminal Code is applied in terms of the period of filing a lawsuit. Again, the statute of limitations for taxes that have not been levied and notified is regulated in the Tax Procedure Law.

Taxes that are not levied and notified to the taxpayer within five years starting from the beginning of the year following the calendar year in which the tax receivable arises are subject to statute of limitations (Article 114 of the Tax Procedure Law).

Tax Penalties:

1. If a lawsuit has not been filed against the penalty before the tax court, from the date the period for filing a lawsuit expires;

2. If a lawsuit has been filed against the penalty, from the date of notification of the notice issued by the tax office upon the decision of the tax court:

should be paid in one month period.(Tax Procedure Law Art. 368)

After the periods specified in the law in terms of the specified acts and penalties, the statute of limitations expires and no tax penalty is imposed.

These periods are determined as follows in the law;

For tax loss penalties, starting from the first day of the year following the calendar year in which the tax receivable to which the penalty is related arises; for irregularity penalties to be imposed in accordance with Articles 353 and repeated 355 of the Tax Law, five years starting from the first day of the year following the year in which the irregularity was committed; for irregularity, two years starting from the first day of the year following the year in which the irregularity was committed; 

However, the penalty to be imposed in case of combination of tax loss penalty and irregularity according to the provision of Article 336 shall be imposed within the limitation period specified for the tax loss penalty.

The statute of limitations is interrupted by the notification of the penalty notice within these periods.

In order to file a lawsuit for tax evasion, the statute of limitations for filing a lawsuit is five years as the general statute of limitations specified in the Turkish Penal Code. In the presence of one of the reasons that interrupt the statute of limitations, this period is determined as a maximum of seven years and six months.

COMPLAINT AND RECONCILIATION IN TAX EVASION OFFENSE

Tax evasion crime is a type of crime committed against the State Treasury because it damages the revenue sources of the state or public administration. For this reason, the tax evasion offense regulated in Article 359 of the Tax Procedure Law is not among the crimes subject to reconciliation.

Tax evasion is not a crime subject to complaint. This crime is investigated by the competent authorities ex officio, that is, by the competent authority itself, without being subject to complaint. The investigation procedure of this offense is shown in the relevant articles of the Tax Procedure Law.

Tax Inspectors and Assistant Tax Inspectors or officers with the authority to inspect, who determine that one of the crimes specified in Article 359 has been committed during their inspection, are obliged to notify the Chief Public Prosecutor's Office with the opinion of the relevant report evaluation commission or by the notary public office. The Chief Public Prosecutor's Office, which is of the opinion that the relevant offense has been committed in a reasoned manner, immediately notifies the relevant tax office and requests an examination. The completion of the examination is not required for the opening of the public case.

Court of Cassation Decision - 11th CD, E. 2021/4149 K. 2021/8545 T. 14.10.2021

COURT Criminal Court of First Instance

CRIME: Fake invoice issuance

Verdict: Conviction

"In the public case filed against the defendant for the crimes of “issuing false invoices in 2009, 2010 and 2011 calendar years”; In the defense of the defendant, in the face of the defendant's declaration that they opened a workplace together with the person named ... in 2009, but the official transactions were made by ..., the invoices were issued by ..., and that he had no knowledge of the issuance of false invoices, in order to determine the material fact in a way that leaves no room for doubt;

1) Bringing the originals of the invoices subject to the crime from the tax office directorates to which the defendant or the taxpayers using the invoices are affiliated, showing them to the defendant and asking whether the writings and signatures belong to him, if he says that they do not belong to him and that they belong to ...; determining the clear identity and address information of the person whose name is reported and calling him as a witness, asking whether the writings and signatures belong to him by showing the invoices after reminding the right to abstain at the hearing,

2) In the event that ...... also states that the writings and signatures on the invoices do not belong to him, an expert examination should be conducted on the writing and signature samples to be provided by the defendant and this person, and to whom the writings and signatures on the invoices belong,

3) If it is understood that the writings and signatures on the invoices do not belong to the defendant or ... or if the originals of the invoices cannot be obtained;

a) Asking the relevant tax office whether a counter-examination report has been issued against the taxpayers who are determined to have used the invoices, and if so, obtaining approved copies,

b) Investigating whether a lawsuit has been filed against the same taxpayers, and if a lawsuit has been filed, bringing and examining the files and taking certified copies of the relevant documents to the file,

c) Calling the company officials or persons who used the invoices to the hearing as witnesses and, after reminding them of their right to abstain pursuant to Article 48 of the Criminal Code, asking them from whom they received the said invoices based on which legal relationship, whether they know the defendant and whether the defendant had any participation in the issuance of the invoices,

According to the result, while all the evidence should be discussed together and the legal status of the defendant should be determined, the conviction provisions were established with incomplete research and examination,

4) According to the acceptance, in accordance with the tax crime report and opinion, a public case was filed against the defendant for the crime of issuing a false invoice, there is no case filed for the crime of using a false invoice, and without considering that the crimes of issuing and using false invoices are separate and independent crimes, the verdict was mixed by establishing a conviction for the crime of “tax evasion by issuing and using false invoices”,

Since it is contrary to the law and the reasons for appeal of the defendant's defense are deemed appropriate in this respect, it was unanimously decided on 14.10.2021 to NULlify the judgments in accordance with Article 321 of the CPC No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320."

CONCLUSION

The crime of tax evasion is one of the types of crimes that are frequently committed in our country, and for this reason, the acts that constitute the crime, the penalties and the procedure for the application of the penalties are of great importance. As a special type of crime in the Turkish Criminal Code, the crime of tax evasion is dealt with in detail in the relevant articles of the Tax Procedure Law together with the elements of this crime type.

Av. Asil ÖZKAN & Stj. Av. Eda KOÇAK